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As filed with the Securities and Exchange Commission on June 12, 2000
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FAIRMARKET, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 04-3351937
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
500 UNICORN PARK DRIVE
WOBURN, MA 01801
(781) 376-5600
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
2000 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
-------------------------------
SCOTT T. RANDALL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FAIRMARKET, INC.
500 UNICORN PARK DRIVE
WOBURN, MA 01801
(Name, address, including zip code, and telephone number, including
area code, of Registrant's agent for service)
With a copy to:
DAVID F. DIETZ, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED (1) SHARE PRICE REGISTRATION FEE
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2000 STOCK OPTION AND
INCENTIVE PLAN 10,500 shares $8.75
55,500 shares $8.1875
Common Stock, $.001 2,054,000 shares $7.51565(2) $15,983,426.35 $4,219.62
par value
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(1) Plus such additional number of shares as may be required pursuant to the
plan in the event of a stock dividend, reverse stock split, split-up,
recapitalization or other similar event.
(2) This estimate is made solely for the purposes of determining the
registration fee and is based upon the average of the high and low price of
the Common Stock on June 7, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in the requirements
of Part I are not required to be filed with the Securities and Exchange
Commission as part of this Registration Statement on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
FairMarket, Inc. (the "Company") hereby incorporates by reference into
this Registration Statement (a) the Company's prospectus filed pursuant to Rule
424(b) under the Securities Act on March 13, 2000, (b) the description of the
Company's Common Stock contained in the Registration Statement on Form 8-A,
dated February 9, 2000, as filed with the Securities and Exchange Commission on
February 10, 2000, pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended and (c) all reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act by the Company since March 13, 2000.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, including the prospectus filed pursuant to Rule 424(b),
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the Delaware General Corporate Law,
Article VII of the Company's amended and restated certificate of incorporation
provides that no director of the Company shall be personally liable to the
Company or to its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (1) for any breach of the director's duty of
loyalty to the Company or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of the
law, (3) in respect of unlawful dividend payments or stock redemptions or
repurchases, or (4) for any transaction from which the director derived an
improper personal benefit. In addition, the Company's amended and restated
certificate of incorporation provides that if the Delaware General Corporation
Law is amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
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For information regarding provisions under which a director or officer
of the Company may be insured or indemnified in any manner against any liability
which he or she may incur in his or her capacity as such, reference is made to
Article IX of the Company's Bylaws, which provides in general that the Company
shall indemnify its officers, directors, employees and agents to the fullest
extent authorized by law.
The Company has directors' and officers' liability insurance covering
certain liabilities incurred by the officers and directors of the Company in
connection with the performance of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
3.1 Amended and Restated Certificate of Incorporation of the
Company*
3.4 Bylaws of the Company*
5.1 Opinion of Goodwin, Procter & Hoar LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (contained in Exhibit
5.1)
24.1 Powers of attorney (see signature page)
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* Incorporated by reference to the relevant exhibit to the FairMarket,
Inc. Registration Statement on Form S-1 (SEC File No. 333-92677), as amended, as
filed with the Securities and Exchange Commission.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any acts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in "Calculation of
Registration Fee" table in the effective Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the undersigned Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Company's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by
a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Boston, Massachusetts, on June 9, 2000.
FAIRMARKET, INC.
By: /s/ Scott T. Randall
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Scott T. Randall
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Scott
T. Randall and John Belchers, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities to sign any or all amendments
or post-effective amendments to this registration statement (or any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act) and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or his substitute may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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/s/ Scott T. Randall Chief Executive Officer, June 9, 2000
----------------------------- President and Director (Principal
SCOTT T. RANDALL Executive Officer)
/s/ John Belchers Chief Financial Officer June 9, 2000
------------------------------ (Principal Financial and Accounting Officer)
JOHN BELCHERS
/s/ Jeffrey Drazan Director June 9, 2000
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JEFFREY DRAZAN
/s/ Nanda Krish Director June 9, 2000
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NANDA KRISH
/s/ Richard Pallan Director June 9, 2000
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RICHARD PALLAN
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of
the Company*
3.4 Bylaws of the Company*
5.1 Opinion of Goodwin, Procter & Hoar LLP
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (contained in
Exhibit 5.1)
24.1 Powers of attorney (see signature page)
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* Incorporated by reference to the relevant exhibit to the FairMarket, Inc.
Registration Statement on Form S-1 (SEC File No. 333-92677), as amended, as
filed with the Securities and Exchange Commission.
